New York has New Rules for Identifications in Criminal CasesBy Michael Joseph on September 06, 2018

Witness tampering, coaching and suggestive photo arrays by police officers and detectives in New York has become a major problem and a contributing cause to several wrongful convictions in New York. The New York legislature has taken steps in an attempt to combat this problem. Too often, when detectives have a suspect in mind, they can say things and give hints who the suspect is. In one recent case, that our office handled, a detective told a witness who said a suspect looked familiar, told the witness, that is right, that's who did it. Our Westchester criminal defense lawyers have long fought for better procedures in witness identifications and fought to ferret out police misconduct that influences witness testimony. New York's new rules now require that the officer or detective who shows the photoarray to the witness do it in such a way that they cannot influence the witness' choice, which is known as "blinding"

One of the most important system variables that law enforcement can control is the blinding of identification procedures. Blinding occurs when the officer administering an identification procedure such as a photo array, knows who the suspect is but cannot determine when the witness is viewing the suspect's photo. "In one common “Blinded procedure”, the officer places each photo in a separate envelope or folder and then shuffles the envelopes/folders so that only the witness sees the images therein." This blinding can also be doubled: for example, when an officer who neither knows the suspect's identity nor position in the photo array shows the array to an eyewitness. Such blinding is used to prevent the officer from giving the witness conscious or unconscious cues that can affect the witness' identification.

New York law has recently been reformed, effective July 1, 2017, with respect to photo array procedure. Although not retroactive, the new rule is relevant in evaluating photo array procedures used in identification cases. New York now allows in-court testimony about a photo array, but only if the observation is made under a "blind or blinded procedure," defined as:

“a "blind or blinded procedure" is one in which the witness identifies a person in an array of pictorial, photographic, electronic, filmed or video recorded reproductions under circumstances where, at the time the identification is made, the public servant administering such procedure: (i) does not know which person in the array is the suspect, or (ii) does not know where the suspect is in the array viewed by the witness.”

This new rule demonstrates a strong policy determination that a blind or blinded procedures provide significant safeguards when viewing photo arrays. This new provision is a result of an agreement reached between the New York State Bar Association, the Innocence Project, and the District Attorneys Association and is expected to bring about a cultural shift instructing federal law enforcement officials to follow a blind or blinded procedure.

Common sense suggests that identification procedures administered without some degree of blinding are inherently untrustworthy, and research confirms this. Typically, the greater the level of blinding, the more reliable the procedure. One of the foremost experts on eyewitness identifications has concluded that blind lineup administration is "the single most important characteristic that should apply to eyewitness identification." Social psychologists believe this is crucial to avoiding the "expectancy effect": "the tendency for experimenters to obtain results they expect . . . because they have helped to shape that response through their expectations." In a seminal meta-analysis of 345 studies across eight broad categories of behavioral research, researchers found that "the overall probability that there is no such thing as interpersonal expectancy effects is near zero." "Even seemingly innocuous words and subtle cues—pauses, gestures, hesitations, or smiles—can influence a witness' behavior." Moreover, the witness usually remains completely unaware of the signals she has been given or their effect on her identification.

However, study after study demonstrates that eyewitness recollections are highly susceptible to distortion by post event information or social cues. One such documented effect occurs when an eyewitness views a photo of a suspect—whether innocent or guilty—multiple times. The Supreme Court long ago recognized this effect, noting that a witness shown a photo of an innocent person "is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification." Social science has recognized this distorting effect.

Witnesses who encountered an innocent person's photo in an initial identification procedure were more likely to misidentify a different photo of him in a second procedure even if they did not misidentify him in the first procedure, but the effect is especially strong if they also misidentified the person in the first procedure.

Our White Plains criminal defense attorneys hope that these new required blind procedures reduce the number of wronful convictions and unreliable or tainted witness identifications in New York criminal cases.